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CASE NO.:

Appeal (civil) 7384-7388 of 2003

PETITIONER:

Govt. of A.P. & Anr

RESPONDENT:

G. Jaya Prasad Rao & Ors

DATE OF JUDGMENT: 21/03/2007

BENCH:

A.K.MATHUR & TARUN CHATTERJEE

JUDGMENT:

J U D G M E N T

A.K. MATHUR, J.

These appeals are directed against the order dated 4th

October, 2002 passed by the Division Bench of the High Court of

Judicature, Andhra Pradesh at Hyderabad in batch of Writ Petitions

filed by the State against the common order passed by Division

Bench of the Andhra Pradesh Administrative Tribunal (hereinafter to

be referred to as 'the Tribunal') in batch of original applications on

12th July, 2002 in OA No. 9461/2001 & others.

The respondents herein were the petitioners before the

Tribunal. They were all Inspectors of Police working at various

places and in various wings in the police Department in the State of

Andhra Pradesh. Most of them were working as Inspectors of Police

in the city of Hyderabad. They approached the Tribunal with a

prayer to declare insertion of Note-2 of Rule 3 and proviso to Rule 6

of the Andhra Pradesh Police (Civil) Service Rules, 1998 (hereinafter

to be referred to as 'Rules of 1998') issued by G.O. Ms. No. 267,

Home (Police-E) Department, dated 26th November, 2001 by

amendment of Rule as arbitrary and discriminatory being violative of

Articles 14,16, 21 and 311 of the Constitution of India.

By this amendment a scheme was introduced for accelerated

promotion for the outstanding work in the field of anti extremist

operation . The Note 2 appended to Rule 3 reads as under:

"Note 2: The Government may consider the cases of

deserving Inspectors of Police and Deputy

Superintendents of Police (Civil), for accelerated

promotions to the next higher ranks in recognition of their

outstanding work in the field of anti-extremist operation

irrespective of their seniority as an incentive by following

the relevant procedure as specified by the Government

from time to time in this regard."

And the Proviso to Rule 6 reads as under:

"Provided that in the case of the accelerated promotions,

the minimum service as specified above shall not apply."

By virtue of these amendments in Service Rules of 1998,

some Officers got accelerated promotions on account of their

performance in extremist areas. The tribunal after elaborate

consideration of the matter acceded to the prayer of the

petitioners (respondents herein) and declared Note 2 to Rule 3

of the Rules and Proviso to Rule 6 being violative of Articles

14 & 16 of the Constitution and struck it down.

Aggrieved against this Order, a batch of writ petitions

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were filed before the High Court.

The stand taken by the State before the Tribunal as well

as before the High Court was that the State of Andhra Pradesh

in order to tackle the menace of terrorism conceived this

scheme as an incentive for the officers so that more and more

officer could come forward to meet this menace to the society

and therefore, as a measure of incentive this scheme was

conceived by the State. It was pointed out that the scheme is

neither arbitrary nor discriminatory and it is a scheme for a

special class/category of persons who do the daring job in

containing the menace of terrorism by naxal groups. Therefore,

it is not discriminatory. It was also pointed out that a scheme

had been prepared whereby the cases of such persons were

screened at two to three levels and the guideline was issued

by Government Order Ms No. 280 on 17.9.2002. As per this

guideline, the Unit Officers/ Superintendents of

Police/Commissioners of Police shall assess the outstanding

work done in the Anti-Extremist Operations by the Police

Officers working under them. They shall recommend the

cases to the Director General & Inspector General of Police for

consideration through their immediate superior Officer. The

Unit Officers/Superintendents of Police/ Commissioners of

Police while forwarding the recommendations of deserving

cases shall broadly be guided by the under mentioned

conditions, viz., that the Police Officer shall have;

i) been an approved Probationer;

ii) performed outstanding work in the filed of Anti,

Extrimist Operations, (here the quality of work turned out

shall be taken as criteria);

iii) uniformly satisfactory records; and

iv) clean defaulter sheet for the last (6) years without any

major Punishments through out the service.

These are the guiding factors. The recommended cases shall

be reviewed by the Superior Officers and shall be forwarded to

the Director General & Inspector General of Police with his

remarks. The Director General & Inspector General of Police

shall send all such cases received from the various Unit

Officers/Superintendents of Police/Commissioners of Police to

the Additional Director General of Police/Inspector General of

Intelligence Department for scrutiny and his remarks. The

Additional General of Police/Inspector General of Police of

Intelligence department will in turn send such cases to the

Special Intelligence Branch (SIB) of the Intelligence

Department which exclusively monitors the Anti-Extremists

Operations of the State for scrutiny and recommendations.

Thereafter, the Inspector General/Deputy Inspector of Police

of the Special Intelligence Branch will scrutinize all such cases

thoroughly as to the quality of each such case and forward

back the special remarks. The same shall be forwarded to

the Director General & Inspector General of Police by the

Additional Director General of Police/Inspector General of

Police, Intelligence Department with his remarks. All such

cases shall be placed before a Departmental Committee

which shall have the;

1. Additional Director General of Police/Inspector

General of Police (L&O), ... Chairman

2. Additional Director General of Police/Inspector

General of Police(Admn.) \005 Member

3. Additional Director General of Police/Inspector

General of Police (Intelligence) \005 Member

4. Additional Director General of Police/Inspector

General of Police (Grey House) \005 Member

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5. Additional Director General of Police/Inspector

General of Police (Special Intelligence Branch)

\005 Member

After scrutiny by the High Level Committee the matter

will be referred to State Government. It was also clearly

mentioned that the aforesaid committee while forwarding the

cases will keep in mind the guidelines mentioned above. The

Additional Director General of Police/Inspector General of

Police may order accelerated promotion on the basis of such

recommendation from the rank of Police Constable to Sub-

Inspector of Police to the next higher rank. The cases of the

Police Officer and above the rank of Inspector of Police shall

be forwarded to the Government by the Director General &

Inspector General of Police for consideration of Accelerated

Promotions and that shall be considered by a High Level

Committee constituted by the Government. That Committee

shall be headed by (i) Chief Secretary to Government as

Chairman, (ii) Principal Secretary to Government, Home

Department as Member, (iii) Secretary to Government, Home

Department as member, (iv) Secretary to Government

(Services), General Administration Department as member and

(v) Director General & Inspector General of Police, Andhra

Pradesh, Hyderabad as member. The Deputy Secretary or

Joint Secretary or Additional Secretary who is dealing with the

police subject in Home Department shall function as

Secretary to this Committee. This Committee shall also be

guided by the following eligibility conditions namely; the

concerned Police Personnel shall have;

i) performed outstanding work in the field of Anti-

Extremist.

ii) uniformly satisfactory record; and

iii) a clean defaulter sheet for the last six years without

any Major Punishments through out the service.

This committee shall meet once in three months to review such

cases. These guidelines were issued for the performance of

accelerated promotions. It is also pointed out that despite these

incentive, few officers were prepared to accept the highly risky and

challenging job. The Police Personnel right from the Constable to

IPS Officer were targeted by the naxals more than 480 laid down their

lives including an I.P.S. Officer. It was also pointed out that after

introduction of accelerated promotion scheme naxal activities have

considerably decreased to the extent of 1/3rd from 1997-2001.

Though the Tribunal as well as the High Court found that

the amendment in Note 2 to Rule 3 as well as proviso to Rule 6 are

held to be ultra vires as it has been observed by the High Court that it

creates a class within class. The High Court held that the

amendment did not satisfy the test of reasonable classification and it

further observed that fortuitous circumstance cannot be made a basis

for creating a separate class within the class. Therefore, the High

Court came to the conclusion that the classification made upon such

basis cannot be treated as a reasonable classification. It was also

observed that fortuitous circumstances cannot be made the basis for

creating class out of large number of persons similarly situated. It

was also pointed out that just because some persons were lucky

enough to get a posting in the naxal affected area , they got

accelerated promotion but others who were not fortunate to get a

posting in the naxal affected area, they were denied promotion. It

was submitted that even the officers posted in same unit may not

get posting in the Police-station where there is naxal affected area

and others are lucky enough to get the posting, then they stand to

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gain and others who are not lucky enough to get posting in that area

they will be denied the opportunity. Therefore, it is discriminatory as

there is a class within class, similarly situated persons are treated

dissimilarly i.e. equals are treated unequally. Therefore, this

classification, according to the High Court is not reasonable

classification and it is not founded on intelligible differentia which

distinguishes one group from the other.

Learned counsel for the appellant-State has pointed out

that the reasoning given by the High Court is not correct. It is pointed

out that the classification is based on intelligible differentia that

those persons who have faced the bullets and did the outstanding job

to check the naxal menace then they form class in itself and in order

to confer the benefit to such persons the scheme was conceived. The

object was to encourage more and more persons to come forward

for this daring job. Therefore, it was submitted that the amendments

have objects sought to be achieved and two class of persons can be

distinguished with each other. The rational basis to distinguish one

class from the other class is sacrifice of people to accept the

challenge of naxal menace. Those who dare need to be rewarded. In

order to substantiate his submissions learned counsel invited our

attention to the decisions of this Court in Ravi Paul & Ors. v. Union of

India & Ors. [ (1995) 3 SCC 300] & Havaldar Bhagat Singh & Ors. v.

State of Haryana & Anr. [ (1996) 8 SCC 649].

In the case of Havaldar Bhagat Singh and Ors Vs. State of

Haryana and Anr reported in {(1996) 8 SCC 649}, the question

was that the State Government issued a circular dated 7.10.1991 in

respect of ex-servicemen who had entered military service before

emergency, prohibiting the withdrawal of the benefits from them if

they had joined the State Government service before the date of the

amendment of the Rules and directing to withdraw the benefits from

such of them as had joined the service of the State Government

subsequent to the date of amendment of the rules. This withdrawal of

the benefits were challenged that it was arbitrary and

discriminatory. Considering the validity of this circular by the State

of Haryana, their Lordships observed as under:

"It was open to the State to withdraw the offer, but not

qua those who had already accepted the offer and joined

the State Government service. Hence was rendered the

decision in K.C. Arora case. The State Government did

not withdraw the offer wholly but restricted it to those who

had enrolled or were commissioned in the armed forces

during the emergency. The State Government was

entitled to do so. In our view, there is a clear and

intelligible difference between those who had already

chosen the armed forces as a career when the

emergency was declared and those who, in response to

the nation's call, joined the armed forces after the

emergency was declared. It was in the country's interest

at that critical juncture to make service in the armed

forces attractive and compensate those who would

otherwise have chosen other vocations. The grant of

benefits to the latter class while denying them to the

former class is in no way arbitrary or discriminatory."

In another case of Ravi Paul and Others Vs. Union of

India and Ors reported in {(1995) 3 SCC 300} their Lordships

observed as under:

"The ECOs who were absorbed/appointed to

the BSF during the period 1967-71 had joined the

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Army during the emergency in the wake of the

Chinese aggression. By joining the Army when the

country needed their services they had made a

sacrifice. Moreover, they were absorbed in the

BSF at a time when there was need for competent

officers in the BSF and in order to attract such

officers in the BSF it was considered necessary to

give the benefit of the service of the Army for the

purpose of seniority in the BSF to the officers who

were appointed/absorbed in the BSF during 1967-

71. The SSCOs had joined the Army as a career

after the emergency resulting from the Chinese

aggression was over. When they were

absorbed/appointed to the BSF during the period

1974-78 there was a change in the policy of the

Government of India and the benefit of the service

in the Army was not to be given to the SSCOs who

were absorbed/appointed in the BSF after release

from the Army. This condition was expressly

mentioned in their letters of appointment and they

opted to join the BSF knowing fully well that their

Army service would not be counted for seniority in

the BSF. The ECOs who were absorbed/appointed

in the BSF during the period 1967-71 and the

SSCOs who were absorbed/appointed in the BSF

during the period 1974-78 are officers belonging to

two different categories and they cannot be

regarded as persons similarly situate."

Therefore, in view of the fact that Officers who have joined

the service to the State have been rewarded for their past

service rendered during Chinese aggression and such class of

persons were found to be treated as class apart.

Learned counsel for the respondents submitted that the

respondents have nothing against the scheme and accelerated

promotion but it is going to operate in a very discriminatory and

arbitrary fashion. It was pointed out that in one unit if there are ten

Police-stations and only three are naxal affected area and one of the

Inspectors gets a chance to serve in that naxal affected area, he

stands to benefit. Therefore, learned counsel for the respondents

submitted that there is no criteria for posting person in any naxal

affected area it gives unbridle power in the hands of unit head in

choosing persons for such posting. He pointed out that so far as the

condition for serving for two years in naxal affected are who had

benefit of accelerated promotion is understandable but the question is

how to pick such persons for posting in that area where he can show

his chivalry or bravery.

We have heard learned counsel for the parties and

perused the records. Before we advert to decide the issue on merits,

it may not be out of place to mention the scheme of the Rules of

1998. The Rules of 1998 laid down the method of recruitment to the

posts mentioned in the Andhra Pradesh Police service. Rule 2

contemplates the constitution of service. The service is divided into

three categories. Category (1) consists of Additional Superintendent

of Police (Non-Cadre) including Officer-on-Special Duty and

Additional Deputy Commissioner of Police. Category (2) consists of

Deputy Superintendent of Police including Assistant Commissioner of

Police other than Assistant Commissioner of Police (Headquarters

and City Armed Reserve). Category (3) consists of Inspector of

Police and Inspector of Police (Women). Rule 3 deals with method of

recruitment. Rule 3 with appended Note 2 is reproduced under :

" 3. Method of appointment:

Subject to the other provisions in these rules, the method of

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appointment for the several categories mentioned in column (1) shall

be by the method specified in the corresponding column (2) of the

Table below:

TABLE

Category (1)

Method of appointment (2)

1, Additional Superintendent of

Police including Officer on

Special Duty and Additional

Deputy Commissioner of Police

By promotion of Deputy

Superintendent of Police

(Category -2)

2. Deputy Superintendent of

Police including Assistant

Commissioner of Police other

than Assistant Commissioner of

Police (Headquarters and City

Armed Reserve)

(i) By direct recruitment; and

(ii) By promotion of Inspector of

Police (Category-3)

3(a) Inspector of Police

By appointment by transfer of

Sub- Inspector of Police in the

Andhra Pradesh Police (Civil

Police) Subordinate Service.

3(b) Inspector of Police (Women)

By appointment by transfer of

Sub-Inspector of Police

(Women)in the Andhra Pradesh

(Civil Police) Subordinate

Service.

Note 1: In every cycle of ten vacancies, the appointment to the

post of Deputy Superintendent of Police shall be as follows namely:-

1st vacancy By Direct Recruitment

2nd vacancy By Promotion

3rd vacancy By promotion

4th vacancy By Direct Recruitment

5th vacancy By Promotion

6th vacancy By Promotion

7th vacancy By Direct Recruitment

8th vacancy By Promotion

9th vacancy By Promotion

10th vacancy By Promotion.

Provided that appointment by transfer to the posts of

Inspectors of Police including Hyderabad City Police shall be made

by the Deputy Inspector General of Police concerned, or as the case

may be by the Commissioner of Police from a list of candidates

approved by the Director General of Police in the order indicated

therein.

Note 2: The Government may consider the cases of

deserving Inspectors of Police and Deputy

Superintendents of Police (Civil), for accelerated

promotions to the next higher ranks in recognition of

their outstanding work in the field of anti-extremist

operation irrespective of their seniority as an

incentive by following the relevant procedure as

specified by the Government from time to time in

this regard."

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So far as the method of recruitment is concerned, a Deputy

Superintendent of Police is entitled to be promoted to the post of

Additional Superintendent of Police and the Deputy Superintendent of

Police is to be recruited by two methods i.e. by direct recruitment or

by promotion from the Inspector of Police. The Inspector of Police

can be appointed by transfer of Sub-Inspector of Police in the Andhra

Pradesh Police (Civil Police) Subordinate Service and Inspector of

Police (Woman) can be posted by transfer of Sub-Inspector of Police

(Woman) in the Andhra Pradesh Police (Civil Police) Subordinate

Service. Note 2 contemplates additional method of recruitment by

way of accelerated promotion out of the Inspectors of Police and

Deputy Superintendents of Police to the next higher rank i.e. Deputy

Superintendent of Police and Additional Superintendent of Police in

recognition of their outstanding work in the field of anti-extremist

operation irrespective of their seniority as an incentive measure as

per the procedure laid down by the Government of Andhra Pradesh

from time to time. Rule 4 makes reservation of appointment. Rule 5

lays down age and qualification with which we are not concerned.

Rule 6 deals with minimum service which will be relevant for our

consideration. It reads as under :

"6. Minimum Service :

No person shall be eligible for

appointment by transfer or promotion unless he is an

approved probationer and has put in service in the

category from which promotion or transfer is made as

specified below :

(a) not less than five years for a Deputy

Superintendent of Police to be promoted as

Additional Superintendent of Police (Non-cadre),

(b) not less than six years for Sub-

Inspector of Police and for Inspector of Police to be

promoted as Inspector of Police and Deputy

Superintendent of Police respectively.

Provided that in the case of the accelerated

promotions, the minimum service as specified above

shall not apply."

As per Rule 6, a Deputy Superintendent of Police will not be entitled

for promotion as Additional Superintendent of Police unless he has

put in five years of service and not less than six years of service for

Sub-Inspector of Police and Inspector of Police to be promoted as

Inspector of Police and Deputy Superintendent of Police respectively,

meaning thereby that a Sub-Inspector of Police in order to be

promoted as Inspector of Police will have to put in six years of service

and likewise an Inspector of Police will have to put in six years of

service to be promoted as Deputy Superintendent of Police. The

proviso to Rule 6 reads as under :

" Provided that in the case of the

accelerated promotions, the minimum service as

specified above shall not apply. "

Therefore, for accelerated promotion, the requirement of minimum

service has been dispensed with. Rule 7 deals with probation and

for direct recruitment to the post of Deputy Superintendent of Police

(Category-2) the period of probation shall be two years and six

months on duty within a continuous period of three years. Rule 9

deals with tests which are not relevant for our purpose in the present

controversy. Rule 10 deals with the unit of appointment. It has

relevant bearing on the issue involved in the present case. Therefore,

it is reproduced as under :

" 10. Unit of appointment

For purposes of recruitment, appointment, discharge for

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want of vacancy, re-appointment, seniority, promotion, transfer and

posting and appointment as full member to the posts specified in

column (2) of the table below, the unit of appointment shall be as

specified in column (3) thereof-

TABLE

Category Post Unit of appointment

(1) (2) (3)

3. (a) Inspector of Police Zone-I Comprising Srikakulam

Vizianaragam and

Visakhapatnam districts

(b) Inspector of Police Zone-II Comprising East Godavari,

(Woman) West Godavari and

Krishna Districts

Zone-III Comprising Guntur,

Prakasam and Nellore

Districts.

Zone-IV Comprising Chittor,

Cuddapah, Anantapur and

Kurnool Districts.

Zone-V Comprising Adilabad,

Karimnagar, Warangal

And Khammam Districts.

Zone-VI Comprising Nizamabad,

Mahaboobnagar, Medak,

Nalgonda and Ranga Reddy

Districts.

Area under the jurisdiction

Of the Commissioner of

Police, Hyderabad."

Rule 11 deals with transfer and postings which reads as under :

" 11. Transfer and postings:

(a) A member of the service shall be liable to serve

in any part of the State of Andhra Pradesh or when so ordered by the

State Government in any part of India, outside in the said State:

Provided that nothing contained in this sub-rule shall

effect the operation of the provisions of Chapter-XII in Part-VII of the

Fundamental Rules in regard to transfer of officers to Foreign

Service:

Provided further that no such member shall be posted or

transferred to any post unless he possesses such special

qualifications and has passed such special tests as may be

prescribed for such post in these rules.

(b) A direct recruit Deputy Superintendent of Police,

Category-2 shall be transferred and posted at Assistant

Commandant, Andhra Pradesh Special Police Battalions and shall

remain in the Battalions compulsorily for a period of three years. The

Service rendered in the Andhra Pradesh Special Police Battalion

shall be counted for the purpose of reckoning qualifying service for

select list.

) The transfers and postings in the case of Additional

Superintendent of Police ( Non-Cadre) and Deputy Superintendent of

Police, shall be made by the Government.

(d) In the case of Inspectors of Police, the transfers

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and postings shall be made within the unit specified in rule-10, by the

Commissioner of Police and the Deputy Inspector General of Police

concerned except in the case of Units IV and V. The transfer and

postings in the case of Inspectors of Police in Units-IV and V shall be

made by the Deputy Inspector General of Police, Kurnool and

Warangal, respectively."

Reading of Rules 10 and 11 says that there are six zones in the

State comprising of various districts and so far as posting of Deputy

Superintendent of Police and Additional Superintendent of Police is

concerned, it has to be made by the State Government though there

is no bar to posting any member of the service in any part of the State

of Andhra Pradesh but for the convenient administrative control the

State has been divided into various zones and each zone is headed

by Deputy Inspector General of Police or Inspector General of Police,

as the case may be. So far as the transfer and posting of Inspector

of Police is concerned, it has to be made within the unit as specified

in Rule 10, by the Commissioner of Police and Deputy Inspector

General of Police concerned except in the case of Units IV and V.

The transfer and postings in the case of Inspectors of Police in Units

IV and V shall be made by the Deputy Inspector General of Police,

Kurnool and Warangal, respectively. Rule 12 lays down uniforms

grant etc. We are not concerned with other part of the Rules.

Now, in this backdrop of the administrative set up we will

have to examine the amendment and the guidelines which have been

issued by the Government of Andhra Pradesh by G.O.Ms. No.267

dated 26.11.2001. So far as the posting of the Deputy Superintendent

of Police and Additional Superintendent of Police is concerned that is

within the power of the State Government and so far as the Inspector

of Police is concerned, it is within the power of Inspector General of

Police i.e. the Police Commissioner or by the Deputy Inspector

General of Police. We are primarily concerned in the present case

with regard to the accelerated promotion of the Inspectors of Police to

the post of Deputy Superintendent of Police and Additional

Superintendent of Police. The State of Andhra Pradesh is divided into

various zones as pointed out above and some of them are very

sensitive areas. It has been pointed out that some zones i.e. Zones

V & VI are by and large affected by the extremist operations.

Therefore, it was submitted that some who could get posting in naxal

area, he may stand to benefit and on account of that fortuitous

circumstance he may get accelerated promotion and march over the

persons similarly situated.

Now, coming to the question whether this amendment of

the rules and insertion of Note 2 in Rule 3 as well as proviso to Rule

6, could be declared ultra vires of Articles 14 & 16 of the Constitution

of India. It may be said at the outset that these rules were amended

looking to the dire need of the State in order to give some incentive

to the Police Officers for voluntarily coming forward to meet the

menace of extremist operations. The purpose is laudable one and

nobody can take exception to this. In order to provide this incentive

service Rules had to be amended. Those persons who are prepared

to volunteer and take more risk in life why such kind of persons

should not stand to gain as against those persons who do not want to

take risk in their life. As a matter of fact those who take risk in their

life and prefer to face hazardous duties, such kind of persons forms a

class and such class of persons stand differentiated from other class

of persons who are not prepared to take risk in their life and want to

continue with the normal police duties and seek their promotion in

due course of time. It is true that the Inspectors of Police form one

category but in the same category it can have two classes, one who

is desirous of taking risk in their life and do service to the society by

taking hazardous assignment as against other persons who want to

continue with their usual police duties. Such Classification cannot be

looked down as arbitrary or violative of Articles 14 & 16 of the

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Constitution of India. The classification is apparent which can be

differentiated from the class of persons who are prepared to sacrifice

their life as against the persons who want to do the routine policing

duties. This cannot be said to be fortuitous classification. The

classification is based on rational principle. Thus the object which is

sought to be achieved in the present case is to meet the challenge of

the naxals and to invite youth and courageous persons to accept this

challenge. It is true that some may get an opportunity to serve and

some may not but that is exigencies of service. Wooden equality is

not possible. Similarly placed person cannot be treated dissimilarly.

But that is not the case here.

We have already highlighted above the scheme/ guidelines

issued under the Rules by the State Government. The guidelines are

properly insulated against arbitrariness or discrimination. Principally

four guidelines have been laid down, namely that a person who

becomes eligible for accelerated promotion should be an approved

probationer and he has performed outstanding work in the field of

anti-extremist operations ( here the quality of work turned out shall be

taken as criteria); has uniformly satisfactory record and lastly, clean

defaulter sheet for the last six years without any major punishments

throughout the service. These factors are sufficient guidelines where

any individual action can be tested. At one point of time, Mr. Verma,

learned senior counsel appearing for the respondents submitted that

the proviso to Rule 6 which dispenses with the minimum period of

service would operate as arbitrary and it will give rise to picking and

choosing. But one of the guidelines clearly lays down that a person

should have at least last six years very good Annual confidential roll

meaning thereby that he should have at least put in six years of

service though under proviso to Rule 6, the minimum period of

service for promotion has been dispensed with but nonetheless in

the guidelines it has been clearly laid down that a person should have

very good ACR for the last six years. That means though the rule

provides that there is no necessity of minimum period of service yet

in the guidelines criteria has been laid down that a person should

have at least six years clean service record. Not only this, in order to

promote a person on accelerated promotion the recommendations by

the Unit Officers are filtered at various stages. After receipt of such

recommendations it will go to the Committee of high ranking police

officers and in that his performance in extremist area will be

examined by the high power committee headed by the Director

General and Inspector General of Police and proper investigation

will be done by the Intelligence Branch and they will examine the

detailed performance of the incumbent as to how he has performed.

Proper investigation is to be done by the Intelligence Branch who are

monitoring anti-extremist operation in the State. After proper scrutiny

the matter will be placed before a still higher committee headed by

the Chief Secretary with Home Secretary and Director General of

Police. Therefore, in order to consider the case of accelerated

promotion the matter has to be examined at various channels, first at

the Unit head, thereafter a Committee constituted by the Police

Department and then a Committee headed by the Chief Secretary to

the State Government at the State level and after his prolonged

examination a person will be eligible for accelerated promotion.

Therefore, these guidelines have been made in order to check that

there should not be any arbitrary promotion and there should not be

any picking and choosing among the persons belonging to the same

category. At one point of time, impression was sought to be created

that there are no guidelines for giving such accelerated promotion but

after going through the detailed G.O.Ms. No.280 dated 17.9.2002 as

discussed above, we are satisfied that there are sufficient guidelines

which check the arbitrary picking and choosing of the persons for

accelerated promotion. After going through these guidelines we are

of opinion that there is least possibility of picking and choosing of the

persons under accelerated promotion scheme.

However, learned counsel for the respondents submitted

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that notwithstanding the fact that the amendment may not be ultra

vires of Articles 14 & 16 of the Constitution, it is capable of being

operated in an arbitrary fashion because the whole of the State of

Andhra Pradesh is not naxal affected area and Zones V & VI are the

only naxal affected areas and he tried to illustrate his point by an

example that suppose an incumbent is working in Warangal district

which comes under Zone V, which is said to be naxal affected area

and in that zone some of the Police-stations may be ear-marked as

extremist prone areas, incumbent may not get an opportunity of

being posted in that Police-Station for showing his chivalry though he

may be willing to work there. Therefore, there is no criteria laid down

that how one can secure a posting in that particular area in order to

show his chivalry and secure accelerated promotion. There is some

truth in his submission but that is more imaginative than real. It

depends upon the In-charge of the Unit, be it Commissioner of

Police or the Deputy Inspector General of Police who has to see the

worth of the incumbent who can deliver the goods. It will not be

proper to interfere with his discretion as to who is suitable and who is

not suitable to be posted in such naxal affected areas. Much depends

upon his wisdom and suitability of the incumbent. It is true that

sometime it may operate as fortuitous circumstance that some gets

an opportunity and some may not get the same. But by that

fortuitous circumstance the rule cannot be held to be bad. It is

possible that in implementation of the rule, some arbitrariness or

some favouritism may be shown, that can be challenged as an

individual action. Therefore, one has to make distinction between the

validity of the Rules and the misuse of the Rule. In case of misuse of

the rule, that individual action can be challenged and it can be

challenged on its merits but by that the whole scheme which has

been introduced for the laudable purpose, cannot be said to be bad.

In this connection, learned counsel for the appellant- State

has invited our attention to a decision of this Court in Ram Sharan v.

The Dy. Inspector General of Police, Ajmer & Ors. [ AIR 1964 SC

1559]. This was a case which arose from the Rajasthan Police. In

that three tier system of the Police administration was there in the

State headed by the Inspector General of Police, Deputy Inspector

General of Police and Superintendent of Police. It was pointed out

that under Section 2 of the Police Act, one Police force is in the State

and the Police administration under the Inspector General of Police

could have ranges headed by the Deputy Inspector General of Police

and the districts are headed by the Superintendents of Police. It was

pointed out that it was necessary for efficient functioning of the Police

force. It was pointed out that looking to the local conditions and for

efficient functioning of the police force recruitment at the Constable

level is done district-wise basis and promotion as Head Constable is

also done on district-wise basis by the Superintendent of Police who

is expected to know their work. Same idea was apparent at the

second tier by which Head Constables in a Range are treated as one

unit for promotion to the rank of Sub-Inspector which is vested with

the Inspector General of Police. By providing promotion within the

range, the area is a little widened as compared to a district. It is only

when one reaches the third tier and come to promotion of Sub-

Inspectors of Police as Inspectors of the Police that local knowledge

is not insisted upon so much as the work of Inspectors of Police and

those above them is more of a supervisory nature It was pointed out

that because the Constable, Head Constable and Sub-Inspector deal

with the public directly and in such a situation local knowledge

certainly plays an important part in the matter of efficiency of the

Police force and in that background their Lordships considered that if

the police administration works in three tier system then such

administration in three tier system cannot be struck down being

discriminatory. However, the Court was cognizant of the fact that

abuse of the power of transfer by Inspector General of Police for one

Sub-Inspector from one range to another, a case of glaring denial of

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equality before the law or glaring denial of equal opportunity for

employment in the service of the State may arise. But the Court

cannot strike down a system on the supposition that an Inspector

General of Police may abuse his power and create glaring instances

of denial of equality before the law or of equal opportunity of

employment in the service of the State. In case of abuse in individual

case same can be struck down and not the system. Therefore,

simply because a particular provision is capable of being abused is

no ground to strike down the whole system.

In the case of S.I.Paras Kumar & Ors. V. S.I. Ram Charan

& Ors. [ (2004) 6 SCC 88] the question arose with regard to out of

turn promotion on the performance of some of the Constables, Head

Constables and Assistant Sub-Inspectors of Police in the anti-

terrorist areas of Punjab though there was no such provision under

the Rules. Their Lordships observed that though the rule does not

permit such promotions out of turn for such activities, or for sports

activities but in order to recognize the services rendered by such

persons Government shall frame necessary rules for such kind of

services rendered by the personnel in the anti-terrorist operation.

Therefore, this Court recognized that though the rule does not

contemplate such promotion, the courage shown by the persons in

anti-terrorist operations should be recognized by framing necessary

rules. There is no gainsaying that those who have performed in

extreme situation they deserve better treatment but this has to be

done within the four corners of the Rules. In order to achieve that

objective in view, this accelerated promotion was conceived and

necessary amendments were made in the Rules and scheme/

guidelines were issued by the State of Andhra Pradesh. Therefore,

reading the amended rules with scheme/ guidelines together it leaves

no manner of doubt that such amendment cannot be said to be

discriminatory or arbitrary.

Learned counsel for the appellant- State has invited our

attention to the pleadings to show that none of the Inspectors of

Police who filed the petitions before the Andhra Pradesh

Administrative Tribunal has nowhere alleged that at any point of time

one of them came forward to go to the naxal affected area and their

request had been turned down. We examined the matter and we

found that there is no such allegation made in the original

application nor learned counsel for the respondents could give us any

satisfactory reply whether any of these respondents came forward for

going to the naxal affected area and his request has met with

refusal. But the learned counsel for the respondents only submitted

that it is not for the incumbent to make a request but it should come

from the State. Be that as it may, learned counsel for the State has a

point that when the respondents have not come forward for going to

the naxal affected areas, it does not lie in their mouth to challenge the

scheme. However, we have examined the validity of the amendment

in the light of the submissions made by parties and our answer is in

negative.

Before parting with the matter, in order to further safeguard

that in case of postings, though Rule 10 covers, but especially when

the postings are done in specially naxal affected areas out of the

persons posted in that zone, the concerned Unit in charge, be it

Inspector General of Police or the Deputy Inspector General of

Police or Police Commissioner, may informally seek voluntary option

from the Officers working in that zone whether they are willing to be

posted in the naxal affected police-stations so that even the remote

possibility of picking and choosing can be avoided. However, it is

still discretion of the concerned Unit in charge, he may after going

through the records may turn down the option of the incumbent if he

finds that he may not come up to the expectation in that area. But

the grievance of the person that he was willing to go for an-extremist

operation still he was not chosen by the Unit in charge, could be

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redressed. This could be done by issuing a circular seeking the

option for such preferential posting in the unit but the last choice

remains with the Unit head and he may, for reasons to be recorded,

come to the conclusion that the incumbent may not be suitable for the

job and may turn down the request but at least the incumbent will

have the choice to serve in anti-extremist operation.

An allegation was also made by some of the persons who have

been given ad hoc promotion under the scheme of accelerated

promotion for not being made parties. However, they were permitted

as intervenors. Learned counsel for the intervenors was also heard

in the matter. He invited our attention to a decision of this Court in

Union of India & Ors. v. E.S.Soundara Rajan etc. [ AIR 1980 SC 959]

on the question of discrimination and in that case the argument of

discrimination among the Railway Officials was not upheld. It was

also pointed out by learned counsel for the intervenors that the

present appeals as well as the original applications filed before the

Andhra Pradesh Administrative Tribunal and High Court should be

dismissed on the question of non-joinder of necessary parties. Mr.

Verma, learned senior counsel for the respondents submitted that

since the validity of the rule has been challenged, therefore the

petition before the A.P. Administrative Tribunal or the writ petition

before the High Court cannot be dismissed on the ground of non-

joinder of necessary parties. It was also submitted by him that when

the question of validity of the rules are concerned, it is not necessary

to implead all the persons likely to be affected while challenging the

validity of the rules and in support thereof Mr.Verma invited our

attention to the following decisions of this Court.

i) 1971(1) SCC 749

Makhanlal Waza & Ors. v.

State of Jammu & Kashmir & Ors

ii) (1974) 4 SCC 335

The General Manager, South Central Railway,

Secunderabad & Anr. v. A.V.R.Siddhantti & Ors.

iii) (1983) 3 SCC 601

A. Janardhana v.Union of India & Ors.

It is true that when the validity of the rules is challenged it is

not necessary to implead all persons who are likely to be affected as

party. It is not possible to identify who are likely to be affected and

secondly, the question of validity of the rule is a matter which is

decided on merit and ultimately, if the rule is held to be valid or

invalid, the consequence automatically flows. Therefore, the original

application filed before the Andhra Pradesh Administrative Tribunal or

for that matter before the High Court does not suffer from the vice of

non-joinder of necessary party.

Since we have already held the rule to be valid, therefore,

there is no question of setting aside the promotions which have

already been made. Hence, as a result of our above discussion, we

find that the judgment and order of the High Court cannot be

sustained and consequently the orders passed by the Andhra

Pradesh Administrative Tribunal and the High Court of Andhra

Pradesh are set aside. The appeals are allowed with no order as to

costs.